How best to fight a small claims judgment?
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How best to fight a small claims judgment?
I was sued for a debt that was past the statute of limitations. The suit took place in IN; I live in TX and AR and have never lived in IN. A default judgment was handed down for over $12,000 in a small claims court. I explained to the court that I do not live in IN and the proper venue was not served. I also explained to the court that the statute of limitations had expired on the contract and debt. How do I go about fighting this and, in the least, get the case dismissed or moved to AR or TX? Also, can they garnish my wages?
Asked on September 15, 2011 under Bankruptcy Law, Arkansas
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
First, you need to get the default judgment vacated--if it's not vacated, you can't get to any of the rest of your argument. If you in fact were served, and if the way you were served comported with IN rules, it may be difficult to do this, UNLESS you can show that IN lacked any jurisdictional basis (that is, that under the law of IN, the IN court had no power over you because you had insufficient contacts with the state) and/or that the statute of limitations was exceeded. You would do this by filing a motion with the court to vacate the judgment, provind a certification/affidavits and other evidence. If the judgment is vacated, then you will have the chance to either defend yourself from the suit on substantive grounds (including an expired SOL) or on procedural grounds (such as to do with service).
If there is $12,000 at stake, you should retain an attorney to help you do this. A lawyer will be much better able to advance arguments based on statute of limitations or venue, and will know how to present and file a motion.
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